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The European Court of Justice (ECJ) has ruled that employees aged 65 or over can legally be forced into retirement. According to Freshfields employment partner Kathleen Healy, the ECJ’s judgment in the case of Age Concern England (known as Heyday) v Secretary of State for Business, Enterprise and Regulatory Reform, which ruled that national retirement ages do not breach EU law, will come as a huge relief for many employers. ‘Today’s outcome derails a huge number of potential claims against employers who now retain their legal right to enforce retirement at 65, providing they follow the correct procedure,’ says Healy. ‘Employers can now continue with their current financial and succession plans – two of the main areas which prompt them to forcibly retire older employees. Healy continues: ‘The ECJ’s ruling will, however, come as bad news for some employees. Those whose age discrimination and unfair dismissal claims have been on hold in anticipation of the Heyday ruling are now unlikely to succeed in those claims. The Employment Tribunals Service estimates there are currently around 260 such stayed claims in the UK. Not only this, employers are now spared from many more potential claims by former employees who may have felt they were forced into retirement unfairly. ‘Despite appearances, this is still not a clear victory for employers. The government will still have to convince the High Court that forcible retirement at 65 is justifiable as a legitimate aim in terms of social and economic policy. We can probably expect the High Court’s decision on this justification point towards the second half of this year.’ Healy concludes: “Although today’s outcome is a relief for many companies, this is by no means the final chapter. Age discrimination and enforced retirement are clearly hotly-contested issues and it is unlikely that the ECJ’s decision today will end the debate.’ Background In July 2006, the National Council on Ageing (operating as Heyday) made a High Court application for judicial review of the 2006 age discrimination regulations on the grounds that they breach the UK’s obligations under the 2000 Framework Directive. The challenge focused on the provision that employees aged 65 or over who are forcibly retired cannot claim that their dismissal is unlawful age discrimination. The High Court referred the case to the European Court of Justice (ECJ), which today ruled against Heyday.
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